Crisman v. Workers' Compensation Appeal Board

740 A.2d 767, 1999 Pa. Commw. LEXIS 860

• Court: Commonwealth Court of Pennsylvania
• Decided: November 10, 1999
• Status: Published

Opinions

FLAHERTY, Judge.

Richard Crisman (Claimant) petitions for review from an order of the Workers’ Compensation Appeal Board, which affirmed a decision of a Workers’ Compensation Judge (WCJ) granting the Modification Petition of Cytemp Specialty Steel (Employer). We affirm.

On May 7, 1993, Claimant sustained a work related neck and back injury while working as a mill hand for Employer. Claimant continued to perform his regular job duties until September 23, 1993, when Claimant ceased working and collected workers’ compensation benefits pursuant to a Notice of Compensation Payable.

On December 28, 1993, Claimant was offered and returned to work in an alternative light-duty position of “Fire Watch” with Employer two hours per day, ten hours per week.¹ On March 14, 1994, Employer filed a Petition to Modify Compensation Benefits (Modification Petition), based upon an opinion by an Independent Medical Examiner (IME) who approved Claimant for the same position of Fire Watch for eight hours per day, forty hours per week.² Employer’s Modification Petition alleged that as of March 7, 1994, Claimant was capable of performing modified work made available to him, but Claimant refused the position in bad faith: Claimant denied the averments of the Modification Petition.

After hearings, testimony and receiving evidence, WCJ accepted the testimony of the IME, Dr. Smith, that Claimant was physically capable of returning to the light-duty Fire Watch position on a full-time basis. WCJ found that Claimant was offered the job, that it was available to Claimant and that at no time did Claimant accept the full-time, light-duty job.³ WCJ also found Claimant’s testimony that the Fire Watch position was “demeaning” was not a sufficient reason to refuse the position and did not overcome Claimant’s physical capacity to perform the light-duty Fire Watch position on a full-time basis.

WCJ granted the Modification Petition, finding that a full-time Fire Watch position offered to Claimant was within his work restrictions and that Claimant had not in good faith returned to the position which was physically within his capabilities. Claimant appealed to the Board, which affirmed. This appeal followed.

Claimant presents two arguments before the Court, however, because Claimant’s question invoking the Americans with Disabilities Act.⁴ is presented for the first time to this Court, our scope of review precludes our consideration of this issue, since the issue was not presented or preserved for appeal before the Board.⁵

Claimant’s sole remaining argument is that the job offered by Employer to Claimant was merely to “sit and act as a human smoke alarm,” and is not productive employment. Therefore, under, Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 582 A.2d 874 (1987), such a job referral to a “no-duty” position was not a “good faith effort” by Employer to return Claimant to work.

The Claimant alleges because the Claimant was released to the light-duty position full-time by the IME instead of his treating physician that this Court’s holding in Ryan v. Workmen’s Compensation Appeal Board (Port Erie Plastics), 162 Pa.Cmwlth. 411, 639 A.2d 866 (1994)(holding that although a “no duty” position was irregular, it was still “available” within the meaning of Kachinski) is not applicable.⁶ We disagree.

The WCJ did not accept as credible the testimony of the Claimant’s physician, and therefore, the only competent medical evidence of record is the credible testimony of the IME, who released the Claimant not only to full-time, light-duty work, but specifically to the full-time, light-duty position of “Fire Watch”, which position the Claimant refused.⁷

Under Kachinski, if the Employer presents medical evidence found credible and competent by the WCJ that the claimant is capable of performing an available job, the Employer is entitled to a modification of benefits. It is within the purview of the WCJ to determine, based upon the medical evidence submitted, if the Claimant is capable of performing the job.⁸

In this instance, Employer offered an available job within Claimant’s physical capabilities, as determined by WCJ, and Claimant’s refusal to accept the position because the Claimant’s perception is that the position is “demeaning” or “no-duty” does not constitute a “good-faith” refusal by the Claimant under Kachinski. See Ryan.

Employer’s Modification Petition was properly granted and accordingly, we affirm the Board.

ORDER

AND NOW, November 10, 1999, in the above captioned matter, the April 11, 1997 Order of the Workers’ Compensation Appeal Board at No. A95-1449 is hereby AFFIRMED.

1 . The Fire Watch position entailed sitting in a trailer and preventing or reporting the possibility of fires.

2 . Claimant' was notified of the availability of the position by letter dated February 28, 1994, indicating that he had been released to full-time, light-duty work beginning March 7, 1994. The Claimant did not accept this full-time, light-duty position at any time.

3 . WCJ rejected the testimony of Claimant’s physician, Dr. Macielak, noting that Claimant’s physician agreed that the Fire Watch position was within Claimant’s physical restrictions.

4 . The Act of July 26, 1990, P.L. 101-336, 104 Stat. 327, popularly referred to as the "Americans with Disabilities Act”, which appears generally as Chapter 126 of Title 42 of the United States Code, 42 U.S.C. §§ 12101 - 12213.

5 . Appellate review in workers’ compensation matters where the Board takes no additional evidence is limited to determining whether there is substantial evidence to support necessary findings of fact, whether there is a violation of constitutional rights, or whether an error of law was committed. ANR Freight System v. Workers’ Compensation Appeal Board (Bursick), 728 A.2d 1015 (1999 ).

In addition, a review of the certified record indicates that the only two issues Claimant presented to the Board on appeal were 1) that WCJ erred by not specifically finding the position offered to Claimant was "no duty;” and 2) WCJ appeared to conclude that a "no duty” position is "available” within Claimant’s medical restrictions and is not a "sham” to circumvent benefits. (C.R. at 20).

Consequently, because the Claimant’s question to this Court regarding the application of the American’s with Disabilities Act was not raised in Claimant’s appeal to the Board, it was not preserved for appeal, and is, therefore, waived and will not be considered. "The mere filing of an appeal [to the Board] does not preserve issues which are not specifically raised.” WCI, Inc. v. Workers’ Compensation Appeal Board (Graeff), 711 A.2d 543 (Pa.Cmwlth.1998); citing Fiorentino v. Workmen's Compensation Appeal Board (Concrete Industries, Inc.), 131 Pa.Cmwlth. 658, 571 A.2d 554, 556 (1990).

6 . In Kachinski, our Supreme Court set forth the following test regarding an employer's burden where an employee has returned to the workplace following a work-related injury:

1) The employer who seeks to modify a claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition;

2) The employer must then produce evidence of a referral to a then open job, which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc;

3) The claimant must then demonstrate that he has in good faith followed through on the job referral;

4) If the referral fails to result in a job, then claimant’s benefits should continue.

7 . Claimant contends that the record is undisputed that there were no duties required of Claimant while he performed the Fire Watch position for ten hours per week from December 6, 1993, "except to prevent or report the possibility of fires,” which Claimant then admits is a duty and responsibility.

8 . If the modification petition is predicated upon an employer’s assertion that it offered a medically approved position available to the claimant, then the employer is not required to produce medical evidence of a change in condition. Rather, the employer need only establish that the proposed alternative work for the claimant is within his or her physical capabilities and "actually available,” i.e., the proffered job receives medical clearance and the claimant is advised of that clearance while the job is still open. H.M. Stauffer & Sons, Inc. v. Workmen’s Compensation Appeal Board (Davis), 687 A.2d 869 (Pa.Cmwlth. 1996), citing Ryan; York Terrace/Beverly Enterprises v. Workmen's Compensation Appeal Board (Lucas), 140 Pa.Cmwlth. 75, 591 A.2d 762 (1991).

To establish a job is "actually available,” an employer need only produce medical evidence describing the claimant’s capabilities, vocational evidence classifying the type of available job and a basic job description. H.M. Stauffer citing Kachinski. "It is within the WCJ’s province as fact finder to assess these duties and restrictions and determine if Claimant could perform the jobs. Expert testimony linking the job duties and medical restrictions is not required.” H.M. Stauffer at 871.